Opinion
11-30-2016
In the Matter of Zhuo Hong ZHENG, appellant, v. Hsin CHENG, respondent.
Arnold & Porter LLP, New York, N.Y. (Maggie C. Maurone of counsel), and Anna Maria Diamanti, Brooklyn, N.Y., for appellant (one brief filed). Michael D. Carlin, Brooklyn, N.Y., for respondent.
Arnold & Porter LLP, New York, N.Y. (Maggie C. Maurone of counsel), and Anna Maria Diamanti, Brooklyn, N.Y., for appellant (one brief filed).
Michael D. Carlin, Brooklyn, N.Y., for respondent.
L. PRISCILLA HALL, J.P., SANDRA L. SGROI, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.
Appeal by the petitioner from an order of the Family Court, Kings County (Adam Silvera, J.), dated January 4, 2016. The order, after a hearing, dismissed the petitioner's family offense petition.
ORDERED that the order is reversed, on the facts and in the exercise of discretion, without costs or disbursements, the petition is granted, and the matter is remitted to the Family Court, Kings County, for a dispositional hearing and the entry of an appropriate order of disposition thereafter, and for the issuance of a new temporary order of protection pending the disposition.
The petitioner commenced this family offense proceeding pursuant to Family Court Act article 8 against the respondent, the father of the parties' child, alleging that he committed the family offenses of, inter alia, disorderly conduct and harassment in the second degree. After a hearing, the Family Court dismissed the petition, concluding that, although the petitioner's testimony was credible, she nonetheless failed to meet her burden of demonstrating that a family offense was committed.
The allegations in a family offense proceeding must be “supported by a fair preponderance of the evidence” (Family Ct. Act § 832 ; see Matter of Tulshi v. Tulshi, 118 A.D.3d 716, 986 N.Y.S.2d 350 ; Matter of Zina L. v. Eldred L., 113 A.D.3d 852, 853, 979 N.Y.S.2d 542 ). Contrary to the Family Court's determination, the petitioner established that the respondent committed the family offense of disorderly conduct (see Family Ct. Act § 812[1] ; Penal Law § 240.20 ). The credible evidence presented at the hearing established that, while standing outside the petitioner's apartment building and with people walking past, the respondent was “yelling and raving” at the petitioner and using obscenities, in such a manner as recklessly created a risk of causing public inconvenience, annoyance, or alarm (see Penal Law § 240.20 ; Matter of Sasha R. v. Alberto A., 127 A.D.3d 567, 568, 8 N.Y.S.3d 277 ; Matter of Banks v. Opoku, 109 A.D.3d 470, 970 N.Y.S.2d 562 ).
Contrary to the Family Court's further determination, the petitioner established that the respondent committed the family offense of harassment in the second degree (see Family Ct. Act § 812[1] ; Penal Law § 240.26 ). The credible evidence presented at the hearing established that, on multiple occasions, the respondent engaged in threatening behavior, which served to “alarm or seriously annoy the petitioner,” and served no legitimate purpose (Penal Law § 240.26[3] ; see Matter of Frimer v. Frimer, 143 A.D.3d 895, 39 N.Y.S.3d 226 [2d Dept.2016] ; Matter of Jacobs v. Jacobs, 138 A.D.3d 742, 743, 27 N.Y.S.3d 884 ).
The petitioner's remaining contention is unpreserved for appellate review.